JEMIN DHARMENDRA PARIKH Vs. CENTRAL BOARD OF EXCISE

JUDGEMENT

(1.) By this petition under Article 226 of the Constitution of India, the petitioners seek a direction to the respondents to permit the petitioners to operate under the licence (Annexure- A to the petition) till the result of the examination to be conducted under regulation 6 of the Customs Brokers Licensing Regulations, 2013 (hereinafter referred to as "the regulations") is announced.

(2.) Briefly stated, the facts of the case are the petitioner No.1 is the sole proprietor of the petitioner No.2 proprietorship firm. The petitioner No.1's father incorporated the petitioner No.2 firm for carrying out activities as a Custom House Agent at Kandla port. A licence came to be issued by the Commissioner of Customs, Kandla on 20.12.2011 whereby the petitioner No.2 was authorised to transact business as Custom House Agent all over India, subject to the conditions laid down in the licence. The petitioner No.1 appeared in the written and oral examinations for 'G' card certificate and was declared to be successful on 15.5.2013. Dharmendra Parikh namely the petitioner No.1's father passed away on 25.4.2014, leaving behind him his wife and his only son, namely, the petitioner No.1, as his legal heirs. The father of the petitioner No.1 was the proprietor of petitioner No.2 firm at the relevant point of time. Upon the death of the petitioner No.1's father, his mother Trupti Parikh addressed a letter to the second respondent on 13.5.2014 requesting that the petitioners be permitted to carry on the business of Custom House Agent. Subsequently, the petitioner No.1's mother relinquished her rights in favour of the petitioner No.1. By letter dated 12.6.2015 (Annexure-H to the petition), the petitioners were intimated that the Principal Commissioner had accepted their request and permitted the petitioner No.1 to continue the work of Customs Broker in terms of the provisions of sub-regulation (2) of regulation 14 of the regulations. Such permission was granted for a period of two years from 25.4.2014, subject to the condition that the petitioner No.1 would have to pass the examination under regulation 6 of the regulations within two years from 25.4.2014. It appears that the petitioner No.1 appeared in the said examination in the month of January, 2016 and the results were expected in April, 2016. In the meanwhile, the period of two years was about to expire on 25.4.2016. The petitioners, therefore, moved an application to the Principal Commissioner of Customs seeking extension of the permission to operate the licence of the father of the petitioner No.1 till the result of examination held in January 2016 is declared, that is, till December, 2017. In the said application dated 21.3.2016, it was stated that the petitioner No.1 had appeared in the regulation 6 exam in January 2016 and that the result was expected in April 2016 as per the regulations or may be August/ September, 2016. It was further stated that if the licence is extended till December, 2017, that would enable the first petitioner to appear for the second trial of regulation 6 exam in the eventuality, he does not clear the exam in 2016. By a communication dated 18.4.2016, the petitioners were informed that the Principal Commissioner had granted permission for a further period of six months from the date of expiry of the original permission granted vide letter dated 12.6.2015 till 24.10.2016. It appears that in view of the fact that the extended period granted under the order dated 18.4.2016 was about to expire, the petitioners addressed a communication dated 20.10.2016 to the Principal Commissioner of Customs stating that the petitioner No.1 could not pass the exam which was held on 28.1.2016 and was now required to appear and pass the stipulated exam which was to take place on 20.1.2017 and, accordingly, sought extension of the licence up to 24.4.2017. Thereafter, the petitioners have moved the present petition seeking the reliefs noted hereinabove.

(3.) Mr. Archit Jani, learned advocate for the petitioners submitted that in terms of regulation 14 of the regulations, a legal heir is required to pass the examination referred to in regulation 6 within a period of two years from the date of demise of the original licensee. The same, therefore, clearly envisages grant of at least two opportunities to the said legal heir to clear the examination referred to in regulation 6 of the regulations. It was submitted that in the facts of the present case, the permission to continue with the work of Customs Broker under the licence in question was granted only on 12.6.2015 for a period of two years from 25.4.2014. It was submitted that since regulation 6 examinations are held only in the month of January, the first petitioner had only one opportunity to clear the said examinations. It was submitted that in view of the fact that the regulations clearly envisage a period of two years to pass such examination, a legal heir would get at least two opportunities to appear in the examination and as such, the respondent ought to have granted extension in a manner which would enable the first petitioner to have two opportunities to appear in the examination. It was submitted that extension of six months which was granted vide letter dated 18.4.2016 was not sufficient, inasmuch as, the same was granted only till October, 2016 and hence, the first petitioner did not get an opportunity to appear in the examinations to be held in January, 2017. It was submitted that the first petitioner has already appeared in the examination which was held in January, 2017 and that the results are expected in April, 2017, after which oral examinations would be held and results thereof would be declared sometime in July/August 2017. Under the circumstances, permission to operate the licence is required to be extended at least for such period till the results of the examinations are declared. It was, accordingly, urged that the petition deserves to be allowed in terms of the relief prayed for.